Man’s death penalty appeal rejected in Whatcom County case

By Gene Johnson

Associated Press

SEATTLE — The U.S. Supreme Court on Monday declined to hear the death penalty appeal of Clark Elmore, who was convicted in 1995 of raping and killing his girlfriend’s 14-year-old daughter in northwestern Washington.

But the decision drew a sharp dissent from Justices Sonia Sotomayor and Ruth Bader Ginsburg. They criticized the Washington Supreme Court’s rationale for upholding the death sentence and argued Elmore’s trial lawyer — current Whatcom County public defender Jon Komorowski — failed to investigate evidence that the defendant had brain damage.

“A more experienced attorney encouraged Elmore’s lawyer to investigate whether Elmore had suffered brain damage as a young man,” Sotomayor wrote. “Instead of doing so — indeed, instead of conducting any meaningful investigation into Elmore’s life — Elmore’s lawyer chose to present a one-hour penalty-phase argument to the jury about the remorse that Elmore felt for his crime.”

As a result, jurors never heard that Elmore played in pesticide-contaminated fields as a child or handled Agent Orange pumps during the Vietnam War.

Such mitigating evidence might have persuaded them to impose a life sentence, Sotomayor said. Komorowski later acknowledged it was a mistake, one he attributed to inexperience. It was his first capital case.

Jeffrey Ellis, one of Elmore’s appeals lawyers, said he was disappointed the high court declined to hear the case and expected to ask it to reconsider.

Elmore pleaded guilty in the case in 1995. In a taped confession, he told police he attacked Christy Ohnstad, 14, when she threatened to report him for molesting her when she was younger.

After raping and killing her and dumping her body near Lake Samish, Elmore criticized law enforcement for doing too little to find the girl — and even organized a search party to look for her.

He then fled to Oregon, intending to steal his twin brother’s identity, before deciding to return to Bellingham and turn himself in six days after the slaying.

Though Washington has the death penalty, Gov. Jay Inslee in 2014 imposed a moratorium on its use. He cited flaws in the system, including that some counties can’t afford to put on a capital trial.

“Whatever flaws do exist in our system can be tolerated only by remaining faithful to our Constitution’s procedural safeguards,” Sotomayor wrote. Elmore’s sentencing and prior appeals fell short of that, she said.

Elmore grew up in Oregon in the 1950s and ’60s and lived near an airport from which crop dusters regularly sprayed pesticides. Decades later, soil samples taken by the state found toxin levels more than 4,500 times greater than maximum amounts allowed by law.

He later worked on cars and oil pipelines, and regularly melted lead batteries. At 17, he left home to serve in Vietnam, where he repaired Agent Orange pumps without protective gear.

For sentencing, his lawyer had him examined by three mental health experts, but failed to call for neurological tests to assess any brain damage. Neurological tests performed for his appeal found a “marked inability to control his emotions and impulses,” which experts said could have contributed to his actions.

The Washington Supreme Court upheld the death sentence. The decision not to have the neurological tests done was merely strategic, the state justices said, and Elmore did not want his attorney presenting details of his personal life.

But that did not justify the lawyer’s decision against investigating whether Elmore was brain-damaged, Sotomayor said.

“Elmore’s crime was horrific, but there was a dramatic difference between the mitigation that was presented and the mitigation that should have been presented.”